The Supreme Court of the Netherlands is the highest civil court in the Netherlands. The Supreme Court is not a third instance but a Cassation court. The Cassation Procedure is the last option to challenge a decision of a lower court. The Supreme Court of the Netherlands judges whether the law and the procedural rules have been applied correctly. This means that the Netherlands Supreme Court assesses whether the judge of facts has correctly interpreted and applied the law.
On appeal, it is possible to reopen the discussion between the parties. So there is a second chance. Parties can for example put forward new arguments and propositions or correct errors made in the first instance.
The Cassation Procedure centers around the application of the law and legal rules. The Netherlands Supreme Court assesses whether the law has been correctly applied. It is therefore no longer about the facts. Only in cases where a factual judgment of the lower court is incomprehensible or insufficiently clarified, there may be a possibility to complain about this to the Netherlands Supreme Court. Litigation before the Netherlands Supreme Court is a specialty. The first step that must be taken is to seek advice from a cassation lawyer admitted to the Netherlands Supreme Court.
The time limit for appealing in cassation in civil matters differs. That period is often 3 months from the date of the decision, but can also be shorter. In the case of summary proceedings, the cassation period is 8 weeks, in case of a dispute about a trade name this is one month and in cases concerning bankruptcy or debt restructuring a very short period of 8 days applies. Exceeding the time limit is generally fatal. The appeal in cassation is then declared inadmissible.
The cassation procedure starts with the filing of a cassation appeal by means of a procedural introduction or a petition. The Attorney General at the Supreme Court then tests whether the appeal in cassation meets the legal requirements. Based on the provisions of art. 80a of the Judicial Organization Act, the Supreme Court can declare the appeal in cassation as a result of this test inadmissible, for example because the complaints submitted do not justify cassation treatment or because the complaints apparently cannot lead to cassation.
Provided this first hurdle has been taken, the other party will then be given the opportunity to respond to the cassation grounds. The entire procedure is in principle written. Only in exceptional cases is there reason to plead the case orally with the Netherlands Supreme Court. After the party debate is completed, one of the Advocates General at the Supreme Court will subsequently render his written opionion. In that opinion, the Advocate General advises the judges of the Netherlands Supreme Court on how to deal with the appeal in cassation. In many cases this advice is followed by the Netherlands Supreme Court. The parties then have the option to respond briefly in writing.
Finally, the Supreme Court ruling follows. The Supreme Court can dismiss the appeal. If the Supreme Court rules that the appeal in cassation is well-founded, then the judgment challenged in cassation is set aside. In the majority of those cases, the Netherlands Supreme Court then refers the case to a Court of Appeal for further judgment. That Court of Appeal must then decide the case again, taking into account the ruling of the Netherlands Supreme Court. Sometimes the Supreme Court can immediately render a final decision, in which case the matter is finalized.
The lawyer who dealt with the case in civil proceedings usually approaches a cassation lawyer. As a litigant you can of course also contact us.
Jack Leeman will gladly help you further.